Dwyer v. Town of Rodman

Appeal from a judgment (denominated order) of the Supreme Court, Jefferson County (Hugh A. Gilbert, J.), entered November 26, 2004. The judgment, upon a jury verdict, declared that the road in question is a town highway created by use and that defendant did not abandon the highway prior to New York State’s acquisition of land adjacent to the highway. It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed with costs. Memorandum: Defendant appeals from a judgment rendered following a jury trial declaring that Babbitts Corner Road is a town highway created by use (see Highway Law § 189) and that defendant did not abandon the highway prior to New York State’s acquisition of land adjacent to the highway (see § 205 [1]). Contrary to defendant’s contention, the verdict with respect to both issues is supported by sufficient evidence (see LaSalle Co. v Town of Hillsdale, 199 AD2d 685 [1993]). Defendant failed to preserve for our review its contention that Supreme Court’s supplemental charge to the jury was erroneous (see Pagnella v Action for a Better Community, 57 AD2d 1076 [1977]). The contention of defendant that it is unable to carry out its duties pursuant to the judgment is not properly before us (see Cogan v Madeira Assoc., 1 AD3d 1066, 1068 [2003]). All concur except Kehoe and Lawton, JJ., who dissent and vote to reverse in accordance with the following memorandum.